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A New Jersey appeals court last Wednesday became the first in the nation to put limits on litigants seeking to learn the identity of anonymous critics who smear their reputations online. In a pair of rulings, the appeals panel laid out a catechism for trial courts to follow before granting a request for an order compelling an Internet service provider to disclose the identity of posters known only by their online screen names. First, the court must require the plaintiff requesting disclosure to try to notify the “John Doe” of the attempt — by posting a notice in the same forum where the offending comment was posted — and then allow enough time for the Doe to oppose the application. Second, the plaintiff must specify the exact statements it alleges are actionable. Third, the plaintiff must be able to withstand a motion to dismiss for failure to state a claim and must provide evidence supporting the claim. Finally, the court must balance the First Amendment right of anonymous free speech against the strength of the prima facie case and the necessity for the disclosure to allow plaintiff to proceed. “Because it sets forth strict procedural and evidentiary standards for compelled identification, and then shows that these standards can truly protect anonymity, this decision is a tremendous victory for free speech,” says Paul Levy, a lawyer for the Washington, D.C., watchdog group Public Citizen, which appeared as amicus in Dendrite International Inc. v. John Doe No. 3, A-2774-00. J.C. Salyer of the New Jersey chapter of the American Civil Liberties Union, which also participated as an amicus, says the ruling will assist judges in balancing free speech rights against “providing people with legitimate lawsuits access to the courts.” Levy and Salyer predict that based on the thorough nature of the Dendrite analysis and the leadership role played by New Jersey courts, judges across the country will look to the ruling when grappling with similar issues. In Dendrite, the appellate court affirmed Morris County, N.J., Superior Court Judge Kenneth MacKenzie’s refusal to allow limited, expedited discovery into the identities of two of four defendants who had posted messages on a Yahoo message board devoted to Dendrite, a Morristown, N.J.-based supplier of sales force software products and support services to the pharmaceutical industry. Dendrite appealed only as to Doe No. 3, who used the pseudonym “xxplrr” to post comments the company called defamatory and violative of trade secrets. Some of them accused the company of inflating earnings by changing the way it recognized revenue. Others claimed that the president was shopping the company because of poor performance but was finding no takers. MacKenzie, applying a de facto summary judgment standard, found that Dendrite failed to establish it was harmed by Doe No. 3′s statements, since it had not shown that the postings caused fluctuations in the price of its stock. Dendrite filed an interlocutory appeal. Judge Robert Fall, joined by Judges Edwin Stern and Ariel Rodriguez, concluded that MacKenzie “appropriately reviewed Dendrite’s claims with a level of scrutiny consistent with the procedures and standards we adopt here today.” Dendrite’s lawyer, Michael Vogel, a partner with Princeton, N.J.’s Allegaert Berger & Vogel, declines comment on the ruling or on whether Dendrite will appeal. Eugene Reynolds, a partner with Wacks, Mullen & Kartzman in Morris Plains, N.J., who represents Doe No. 3, could not be reached for comment. Accompanying the Dendrite decision was a ruling by the same panel in Immunomedics v. Jean Doe, A-2762-00, which applied the Dendrite standard in allowing the disclosure requested by plaintiff in a breach of contract case. Morris County Superior Court Judge Barbara Zucker-Zarett denied a motion to quash a subpoena served on Yahoo by Immunomedics, a biopharmaceutical company in Morris Plains. The subpoena sought information about the identity of Jean Doe, who used the screen name “moonshine_fr” and identified herself as “a worried employee” in describing problems with the company’s operations in Europe. Based on Jean Doe’s admission and a company certification that all employees were required to sign confidentiality agreements, Zucker-Zarett found there was enough basis to believe she was an employee and that Immunomedics had stated viable claims for breach of contract and breach of duty of loyalty. In applying the Dendrite standard to affirm Zucker-Zarett, the appellate court noted that the Immunomedics’ confidentiality agreement provides that disputes are to be governed by New Jersey law and that the employee submits to jurisdiction in the state. Steven Stein, who represents Jean Doe, says his client will appeal. He says Jean Doe should have been allowed the chance to rebut the company’s claims while maintaining anonymity through in camera review or some other mechanism. Stein, a partner with Stein & Stein in Succasunna, N.J., urges a stringent standard akin to that used for preliminary injunctions where likelihood of success on the merits must be shown. “Disclosing an anonymous poster before there is real evidence shown is an extraordinary remedy,” he says. “Harm to a Doe improperly disclosed is irreversible.” Nicholas Stevens, a partner with Roseland, N.J.’s Starr, Gern, Davison & Rubin who represented Immunomedics, says he argued before Zucker-Zarett that “no matter what standard you find, you should find the record we set would meet any standard.”

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